Tuesday, December 1, 2009

Rewriting the Constitution, Part 2: The Senate

The Senate as now constituted is both redundant and unrepresentative. Insofar as its "districts" are the States, the cost of running makes pursuing a place in the House look almost a bargain. It is, as we should expect, largely a millionaire's club.

How could things be different? We can take our clue from the name given the upper house by the constitution: the senate. In ancient Rome the senate was the assembly of former magistrates, whose constitutional position unhappily remained ambiguous. That uncertainty became a constant source of political mischief, and the Roman senate's alignment with patricians, then optimates, then emperors, kept it always chained to the interest of the few. But its strength, and utility, always lay in its being the permanent repository of political experience in the state.

Despite its dangers, I don't think an "upper house" necessarily dangerous when, as in our Constitution, it is conceived as a partner with the representative assembly, with all legislation requiring the concurrence of both. The ancient Roman senate had too much dominance of affairs as they went before the popular assemblies, and the institution of the tribunate, as a stopgap way of redressing the balance, became a source of serious conflict for centuries.But I think the conception of the upper chamber as balancing the inexperience of the representative assembly has much merit. The trick is to define which former magistrates shall serve in the Senate, and under what conditions.

Our current tradition is to release our former presidents to play golf and increase their personal wealth with lucrative speaking fees to industry groups. We've grown used to the idea that it's somehow beneath the dignity of former presidents to continue to serve their country in lesser capacities. But in fact it's a terrible waste of experience.

So I would populate the Senate with former presidents, former vice-presidents (if we decide to keep that office), former Speakers of the House, former Supreme Court justices. These, I think, could be allowed to serve for life, with the most senior former president presiding. Who else?

I think it would also be a good idea to include former governors. That would allow the Senate to retain its current character as the unique national legislative locus of specifically State concerns. But because there are obviously so many of them, life terms for former governors would swell the Senate's size too greatly. So each governor would serve only until another former governor from his own particular State went out of office. Thus, for example, New Mexico would currently be represented in the Senate by Gary Johnson, who would serve until Bill Richardson gave up the governorship and moved into the Senate.

It might also be wise to allow certain former cabinet secretaries limited terms after their service--State, Treasury and Defense, for example.None of these magistrates could be compelled to serve. They would certainly be allowed to play golf and rake in the speaking fees if they so chose. But that choice would be irrevocable--if, after leaving a qualifying office, they refused service in the Senate, they would thereafter be ineligible to serve. And I think, given this structure in place, it would eventually become a firm social expectation that those to whom authority has been given should continue to serve in this capacity. As currently, all new legislation would therefore have to pass in both the House of Representatives and the Senate. We might have a legitimate concern that the ordinary citizens of the lower house might be a little overawed by the "names" in the upper. But as a co-equal partner in the framing of laws one would hope that their representative character would give them the courage to bring their distinctive perspective to the legislative process, tempered by the senators' experience of actually governing.

The Senate would also retain its current "advise and consent" function for ambassadors, cabinet officers, federal judges, and treaties. One would hope that this membership for the Senate might make it less likely to be overawed by the sitting executive, and perhaps less deferential.

And so on now to the selection of the chief magistrate of the nation.....